NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COUR T 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS
D IVISION O NE

MARK A. MALL, Plaintiff/Appellant
,

v.

LEONARD J. MCDONALD, et al., Defendant/Appellees

.
No. 1 CA-CV 23-0193

Appeal from the Superior Court in Maricopa County No. CV2022-014883 The Honorable Katherine Cooper, Judge

AFFIRMED

COUNSEL
Mark Anthony Mall, Phoenix Plaintiff/Appellant

Tiffany & Bosco, P.A., Phoenix By Leonard J. McDonald, Michael F. Bosco Counsel for Appellees FILED 0 1-18-2024MALL v. MCDONALD, et al. Decision of the Court

2 MEMORANDUM DECISION

Judge Anni Hill Foster delivered th e decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

F O S T E R , Judge:

¶1 Plaintiff Mark Mall appeals the superior court’s denial of his motion for injunctive relief seeking to stop a trustee’s sale of his encumbered real property. For the follo wing reasons, this Court affirms.

FACTS AND PROCEDURAL HISTORY

¶2 In 2007, Mall obtained a loan from Wells Fargo Bank, N.A., secured by a Deed of Trust on real pr operty he owned. It listed Wells Fargo Bank as the trustee. A month later, Mall transferred the property via a Warranty Deed into the Mall Living Trus t with himself as trustee. Wells Fargo consented to this transaction. Beginning in January 2021, Mall failed to make monthly payments on the loan. In October of the following year, Mark Bosco, who held a limited po wer of attorney for Wells Fargo, substituted Leonard McDonald as tr ustee under the Deed of Trust. McDonald then recorded a Notice of Tr ustee’s Sale to take place in January 2022.

¶3 In response, Mall sought an inju nction to prevent the trustee’s sale. As legal proceedings continued and the date of the sale approached, Mall moved for an Emergency Temporary Restraining Order (“TRO”). The court granted the order, cancelled the sale, and ordered a hearing on the matter the following week. Following the hearing, the court vacated its order, finding that Mall had not estab lished the elements for a TRO. About two weeks later, the court held an evid entiary hearing on Mall’s initial motion. Following Mall’s presentation of evidence and argument, the court denied injunctive relief and dismissed the case, finding that Mall “fail[ed] to show any unlawful conduct to su pport his claim.” Mall filed a motion for reconsideration, which the court denied.

¶4 This Court has jurisdiction under A.R.S. § 12-2101(A)(1).MALL v. MCDONALD, et al. Decision of the Court

3 DISCUSSION

¶5 Denial of a preliminary injunction is reviewed for an abuse of discretion. Fann v. State , 251 Ariz. 425, 432, ¶ 15 (2021). Relevant facts are viewed “in the light most favorable to upholding the trial court’s ruling.” Mahar v. Acuna , 230 Ariz. 530, 532, ¶ 2 (App. 2012) . “Unless the trial judge either made a mistake of law...or cl early erred in finding the facts or applying them to the legal criteria...we must affirm.” Shoen v. Shoen , 167 Ariz. 58, 62 (App. 1990).

¶6 A party requesting an injunction must demonstrate four criteria: (1) “a strong likelihood of su ccess on the merits,” (2) “irreparable harm if the stay is not granted,” (3 ) “the harm to the requesting party outweighs the harm to the [opposing p arty],” and (4) “public policy favors [] granting the stay.” Smith v. Ariz. Citizens Clean Elections Comm’n , 212 Ariz. 407, 410, ¶ 10 (2006).

I. This Court takes judicial notice of documents as requested by Mall.

¶7 As a preliminary matter, Mall requested this Court take judicial notice of four documents: (1) Affidavit and Assertory Oath of Acceptance of Trusteeship of the Mall Familia GodTrust; (2) Deed of Full Reconveyance; (3) Affidavit of Trut h, Repudiation and Revocation of Citizenship; and (4) Master Form Deed of Trust. A Court may take judicial notice of a fact if “the court is supp lied with the necessary information” and the fact “can be accurately and read ily determined from sources whose accuracy cannot reasonably be questi oned.” Ariz. R. Evid. 201(a), (b)(2), (c)(2). The documents in question be ar the stamp of the Maricopa County Recorder identifying them as official public documents for which this Court may take judicial notice. See Ariz. Pub. Integrity Alliance v. Fontes , 250 Ariz. 58, 65, ¶ 28 n.2 (2020); Wang Elec., Inc. v. Smoke Tree Resort, LLC , 230 Ariz. 314, 325, ¶ 33 (App. 2012). Mall’s request for judicial notice of the existence and recording of these documents is granted.

II. Mall has not shown a likelihood of success on the merits.

¶8 To show a likelihood of success on the merits, Mall needed to show that McDonald, as trustee, did not hold an interest in the property. Mall has not done so.

A. Trustee’s Sales are Governed by Statute.MALL v. MCDONALD, et al. Decision of the Court

4 ¶9 Mall argues there is no proof of an underlying debt secured by the Deed of Trust, implying that the Deed of Trust and other documents are “flawed,” “defective,” or “fraudulent.” He argues that, because the “promissory note, revolving line of cred it agreement, cont ract, guaranty or other evidence of debt” referenced in the Deed of Trust was not offered into evidence, there is no proof that he o wes the debt. Such a showing is not required. See Hogan v. Wash. Mut. Bank, N.A. , 230 Ariz. 584, 585, ¶¶ 1, 8 (2012) (holding “Arizona’s non-judicial foreclosure statutes do not require the beneficiary to prove its authority or ‘show the note’ before the trustee may commence a non-judicial foreclosure”). “[T]rustees’ sales[] are governed by statute” and no statute mandates showing the underlying debt before holding a trustee’s sale. Id. at 585-86, ¶ 5. A.R.S. § 33-808(C)(4), which directs the information required in a no tice of a trustee’s sale, does require that the original amount owed under the Deed of Trust, be included in the notice. McDonald’s notice complied with the statute.

B. The Deed of Trust Remained Effective After Mall Executed the Warranty Deed.

¶10 Mall claims that the Warranty Deed superseded and revoked the Deed of Trust. A Deed of Trust “convey[s] trust property to a trustee. . . to secure the performance of a cont ract.” A.R.S. § 33-801(8). The statute specifically contemplates a subsequent transfer of the secured property. A.R.S. § 33-801(11) (defining the “trust or” as “the person conveying trust property . . . or the successor in interest of such person”); see also Successor in Interest , B LACK ’ S L AW D ICTIONARY (11th ed. 2019) (“Someone who follows another in ownership or control of property.”). The Warranty Deed expressly stated that Mall, as granto r, “warrants the title against all persons whomsoever.” Mall’s transfer of the prop erty into his living trust did not revoke the Deed of Trust; the deed remained effective and still encumbered the property. This remains true even wi th an additional reconveyance from the Mall Living Trust back to Mall.

C. The Interest in the Land Conv eyed by the Deed of Trust Remains Valid.

¶11 Mall argues the trustee’s sale is improper because he has superior allodial title to the property based on his chain of title going back to a federal land patent. A land pate nt is “[a]n instrument by which the government conveys a grant of public land to a private person.” Land Patent , B LACK ’ S L AW D ICTIONARY (11th ed. 2019). It “is the highest evidence of title” and “conclusive as against the Government, and all claiming under junior patents or title.” U.S. v. Stone , 69 U.S. 525, 535 (1864); Raestle v.MALL v. MCDONALD, et al. Decision of the Court

5 Whitson , 119 Ariz. 524, 526 (1978). Once “iss ued, full legal title passe[s] to the patentee” who “[can] do with the la nd that which he [sees] fit,—sell or give it away.” Hartman v. Butterfield Lumber Co. , 199 U.S. 335, 337 (1905). But “if [the patentee] voluntarily conveyed [the land], he could not thereafter repudiate the conveyance.” Id. Just as all the previous owners of the land were free to convey title to the land or encumber it, so too was Mall. Though the land was initially conveyed by a land patent, that is irrelevant to this case. When Mall signed the Deed of Trus t, he conveyed an interest in the property, and he cannot now annul that transfer.

¶12 Mall’s claim to allodial title of the land is similarly unavailing. Allodial title is “ownership without a duty of service to, control by, or acknowledgment of any superior landlord.” Allodial Title
, B LACK ’ S L AW D ICTIONARY (11th ed. 2019). The term merely signifies a break from the “loyalty, obligation, and service” a vassal owed his lord under feudal land ownership. Nadav Shaked, The Duty to Maintain , 64 D UKE L.J. 437, 456-57 (2014). Allodial title grants Mall the sa me freedom to convey an interest in his property as the land patent does, and it offers no protection to avoid the consequences of such a conveyance.

¶13 Because the Deed of Trust was a valid transfer of interest in the property, McDonald, as trustee unde r the Deed of Trust, had authority to sell the property when Mall defaulte d on the underlying debt contract. A.R.S. § 33-807(A)(conferring the power to sell property after a breach or default on the trustee of a deed of trust).

III. Mall has not established that there are serious questions regarding the merits.

¶14 When reviewing for the presence of serious questions the inquiry is “whether there are serious questions going to the merits ” and “depends more on the strength of the legal claim than on the gravity of the issue.” Ariz. Assoc. of Providers for P ersons with Disabilities v. State , 223 Ariz. 6, 12, ¶ 13 (App. 2009) (quoting Luckette v. Lewis , 883 F.Supp. 471, 474 (D. Ariz. 1995)).

¶15 As discussed above, the legal claims Mall raises concerning title and McDonald’s authority to execute the trustee’s sale do not support his arguments. Arizona’s statutory schem e grants a trustee under a Deed of Trust the authority to sell conveyed property upon default of the underlying debt. A.R.S. § 33-807(A). Ma ll raises no serious question going to the merits of his case.MALL v. MCDONALD, et al. Decision of the Court

6 CONCLUSION

¶16 Because Mall did not make the required showings for injunctive relief, the superior court did not abuse its discretion by denying Mall’s motion. The superior court’s order is affirmed.

¶17 Appellees seek attorneys’ fees and costs under A.R.S. § 33- 807(E). This Court awards reasonable atto rneys’ fees and costs to the trustee upon compliance with Arizona Rule of Civil Procedure 21.